<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 6, 2000
REGISTRATION NO. 333-34866
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
Amendment No. 1
FORM S-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------------
SOFTLOCK.COM, INC.
(Exact name of registrant as specified in its charter)
7372
(Primary Standard Industrial Classification Code Number)
<TABLE>
<S> <C>
DELAWARE 84-1130229
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number)
</TABLE>
Five Clock Tower Place, Suite 440, Maynard, Massachusetts 01754
(978) 461-5940
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
----------------------------
SCOTT W. GRIFFITH, PRESIDENT AND CHIEF EXECUTIVE OFFICER
SOFTLOCK.COM, INC.
FIVE CLOCK TOWER PLACE, SUITE 440
MAYNARD, MASSACHUSETTS 01754
(978) 461-5940
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------------
Copies to:
CLIVE R.G. O'GRADY, ESQ.
MCGUIRE, WOODS, BATTLE & BOOTHE LLP
1750 TYSONS BLVD., SUITE 1800
TYSONS CORNER
MCLEAN, VIRGINIA 22102-3915
Approximate date of commencement of proposed sale to the public: The earlier of
(i) four months after this Registration Statement becomes effective or (ii)
November 1, 2000.
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box: /X/
If the registrant elects to deliver its latest annual report to security
holders, or a complete and legible facsimile thereof, pursuant to Item 11(a)(1)
of this Form, check the following box: /X/
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the
<PAGE>
Securities Act of 1933, please check the following box and list the Securities
Act of 1933 registration statement number of the earlier effective registration
statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act of 1933, check the following box and list the Securities Act
of 1933 registration statement number of the earlier effective registration
statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act of 1933, check the following box and list the Securities Act
of 1933 registration statement number of the earliest registration statement for
the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------------
Title of Each Class of Amount to Be Proposed Maximum Proposed Maximum Amount of
Securities To Be Registered Registered Aggregate Aggregate Offering Registration Fee(2)
Offering Price Per Unit(1) Price(1)
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock par value $.01 5,312,600 $8.99 $47,757,037 $12,610
per share
----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of determining the registration fee.
In accordance with Rule 457(c), the price shown is based on the average
of the high and low price of our common stock on April 13, 2000 as
reported on the OTC Bulletin Board.
(2) Previously paid.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE>
SUBJECT TO COMPLETION, DATED JULY 6, 2000
SOFTLOCK.COM, INC. LOGO
5,312,600 SHARES
COMMON STOCK
---------------------------------------------------
The Offering:
<TABLE>
<S> <C>
- The selling shareholders will pay all of their
- This is an offering by the selling shareholders to commissions, brokerage fees and related expenses. We
sell 5,312,600 shares of our common stock. will pay all of the expenses of this offering,
estimated to be approximately $94,610, including up to
- We will not receive any proceeds from the sale $20,000 in legal fees for the selling shareholders.
of our common stock by the selling shareholders.
Trading Symbol: - The selling shareholders will not sell any of the
shares until the earlier of (i) four months after the
Our common stock is listed on the over-the- registration statement of which this prospectus is a
counter bulletin board under the symbol part is declared effective or (ii) November 1, 2000.
"SLCK."
</TABLE>
The Selling Shareholders:
BEFORE MAKING ANY INVESTMENT IN OUR SECURITIES, YOU SHOULD READ AND CAREFULLY
CONSIDER THE RISKS DESCRIBED IN THE RISK FACTORS BEGINNING ON PAGE 1.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is accurate or complete. Any representation to the contrary is a
criminal offense.
The information in this prospectus is not complete and may be changed. Selling
shareholders may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities and it is not soliciting an offer to
buy these securities in any state where the offer or sale is not permitted.
<PAGE>
-------------------------------------------------------------------------------
SUMMARY
This is an offering by the selling shareholders to sell 5,312,600
shares of our common stock.
We will not receive any proceeds from the sale of our common
stock by the selling shareholders. The selling shareholders may not sell any
of the shares until the earlier of (i) four months after the registration
statement, of which this prospectus is a part, is declared effective or (ii)
November 1, 2000. After that time, the selling shareholders may sell their
shares from time to time in a variety of transactions at market prices
prevailing at the time of sale or at negotiated prices.
We provide integrated content management and context marketing to allow
commercial web sites to securely market and sell digital content. Publishers of
digital content, including research reports, newsletters and electronic books,
use our system to package and securely distribute their products while
protecting their intellectual property. We market digital content through
strategic relationships with many affiliates who offer the digital content on
their web sites. When a prospective consumer accesses the content, the consumer
can preview selected portions of the final product. The consumer can then
instantly purchase access to the complete product 24 hours a day, 7 days a week
via the World Wide Web. The consumer then has permanent access to the product
for the consumer's own use. Consumers are encouraged to pass along the digital
content they have purchased, but recipients can only preview the selected
portions of the final product chosen by the content provider until they go
through the purchase process themselves.
Through our product the content can be securely sampled, electronically
purchased and redistributed, and our patented technology is designed to keep
intellectual property secure while generating valuable marketing data and sales
revenue.
The mailing address of our principal executive offices is Five Clock
Tower Place, Suite 440, Maynard, Massachusetts 01754 and our telephone number is
(978) 461-5940.
-------------------------------------------------------------------------------
<PAGE>
RISK FACTORS
You should read this entire prospectus and the documents incorporated
by reference before investing in our common stock. A number of factors may
adversely impact your investment in the common stock, including the following:
WE HAVE A HISTORY OF LOSSES AND NEGATIVE CASH FLOW AND ANTICIPATE CONTINUED
LOSSES, AND THEREFORE, WE MAY NEVER ACHIEVE PROFITABILITY IN THE FUTURE OR
SUSTAIN PROFITABILITY.
We have incurred recurring operating losses and negative cash flow
since our inception and have recorded limited revenues to date. We expect to
continue incurring net operating losses through 2000 as we continue to
develop products and expand our marketing strategy. For example, we incurred
a net operating loss of $6,643,204 for the fiscal year ended December 31,
1999 and $3,190,932 for the fiscal quarter ended March 31, 2000, and our
accumulated deficit is $11,813,787 through March 31, 2000. Our planned
expenditures are expected to continue growing throughout 2000. We cannot
assure you that we will ever achieve profitability in the future or sustain
profitability, if achieved.
BECAUSE THE MARKET FOR ONLINE DISTRIBUTION OF PROPRIETARY CONTENT IS NEW AND
EMERGING, COMMERCIAL ACCEPTANCE OF OUR PRODUCTS IS SUBJECT TO INFRASTRUCTURE AND
COMPETITIVE RISKS THAT MAY ADVERSELY AFFECT OUR PLANNED GROWTH AND FINANCIAL
OBJECTIVES.
Our business model is based on the growth of online commerce with
respect to digital products and the development of online commerce for the sale
of digital content. The market for the purchase of products and services over
the internet, especially the purchase of information content, is a new and
emerging market. Our future revenues and profits and our business model depends
on the willingness of consumers and businesses to purchase proprietary content
on the internet. Our method of distributing digital information may not be
commercially accepted for a number of infrastructure-related reasons, such as
the following, some of which may be beyond our control:
- a failure to develop the necessary infrastructure for
communication of digital information;
- a failure to develop or deploy enabling technologies,
including compression or broadband technology
necessary for distribution of particular digital
content over the internet;
- reduced demand for paid digital content due to the
widespread availability of free content online and
the ability to use and distribute this content
without restriction;
- adoption of a different business model for purchasing
proprietary content, such as paying one-time license
fees rather than paying ongoing transaction fees; and
insufficient speed, access, and server reliability,
as well as lengthy download time for content.
In addition to these infrastructure risks, we will be competing against
continuously changing and improving technologies. While management believes that
our method for the marketing, distribution and sale of content on the internet
is unique, there are numerous competitive methods and business models under
which our prospective clients could choose to distribute or sell their content.
Some of these alternative methodologies are supported by companies with
substantially greater personnel, financial and technical resources and a more
established customer base than what we possess. There can be no assurance that
we will be able to convince prospective customers of the merits of our system or
that we will be able to compete with these competitors successfully. Potential
competitors may bundle their products or incorporate a digital rights management
component into existing products in a manner that
<PAGE>
discourages users from purchasing our products. Furthermore, new competitors or
alliances among competitors may be able to respond more quickly than us to new
or emerging technologies and changes in customer requirements.
If our products are not accepted as a result of systemic problems with
digital distribution of proprietary content, greater acceptance of competitors'
products or other factors, our revenues and operating results will be adversely
affected.
IF OUR TECHNOLOGY IS NOT DEPLOYED BY CONTENT PROVIDERS AND OTHER THIRD PARTIES,
OUR BUSINESS WILL SUFFER.
In addition to the risks posed by systemic problems with the adoption
of digital commerce in proprietary content and greater user acceptance of
competitor's products and business models discussed above, failure of third
parties to deploy our technology and create a market for digital commerce could
materially adversely affect our business. Our business and operating results
could suffer to the extent affiliates and other internet companies choose not
to:
- deploy our technology;
- develop infrastructure for the digital distribution
of proprietary content;
- generate transaction fees from the sale of digital
content and services; and
- promote brand preference for our products and
services.
We may not generate revenue sufficient for business growth unless we
maintain relationships with existing affiliates and content providers and
significantly increase the number of companies that use our technology for the
sale of digital content. Our ability to attract new affiliates and content
providers will depend on a variety of factors, including:
- the performance, reliability and security of our
products and services;
- the scalability of our products and services, the
ability to rapidly increase deployment size from a
limited number of end-users to a very large number of
end-users;
- the cost-effectiveness of our products and services;
and
- our ability to market our products and services
effectively.
Our ability to attract new affiliates and content providers may also
depend on the success of our initial products and services and our overall
success. Many potential affiliates and content providers may resist working with
us until our content, products and services have been successfully introduced
into the market and have achieved market acceptance. We may not be able to
attract a critical mass of affiliates and content providers that will develop
products and services, and our affiliates and content providers may not achieve
widespread deployment of users that we believe are necessary for success.
In addition, we may not be able to establish relationships with
important potential customers if we have already established relationships with
their competitors. Therefore, it is important that we are perceived as a neutral
and trusted technology and service provider. In addition, we require content
providers to comply with our specifications. Potential affiliates and content
providers may be unwilling to be subject to the control of these specifications.
OUR REVENUES AND EXPENSES WILL BE DIFFICULT TO PREDICT BECAUSE WE ARE IN THE
EARLY STAGES OF DEVELOPMENT AND OUR BUSINESS MODEL IS BASED ON TRANSACTION FEES
WHICH VARY WITH VOLUME.
<PAGE>
Planning the development of our business and accurately predicting our
future revenues and expenses are difficult because our business model is new and
unproven and the industry in which we compete is in the early stages of
development. We also expect that there will be intense competition in this
industry. Our potential customers and users have and will continue to have many
choices. Our potential customers may experiment with many different products
until it becomes apparent which products work best. Cancellation or non-renewal
of existing or future client contracts, could materially adversely affect our
business and financial condition . As a result, our revenues could fluctuate
during any fiscal year, which may, in turn, cause the price at which our common
stock trades to be subject to substantial volatility.
Furthermore, a portion of our business model is based on
receiving transaction fees in the form of a percentage of the fees charged by
our content providers and affiliates in commercial transactions and services
that use our technology. The amount of these fees in any given quarter will
depend on how quickly our technology is deployed and the volume of digital
commerce transactions that occurs using our product. Variations of these
factors could affect our quarterly operating results. Because the timing of
deployment of our technology and the volume of digital commerce using our
technology is outside of our control, it will be difficult for us to make
accurate quarterly revenue projections. If our revenue projections are not
accurate for a particular quarter, our actual operating results for that
quarter could fall below the expectations of analysts and investors. Our
failure to meet these expectations would likely cause the market price of our
common stock to decline.
WE MAY NEED TO RAISE ADDITIONAL CAPITAL THAT MAY NOT BE AVAILABLE TO US ON
FAVORABLE TERMS, IF AT ALL; THEREFORE, WE MAY HAVE TO SUBSTANTIALLY REDUCE OR
ELIMINATE CURRENT AND PLANNED SOFTWARE PROGRAMS AND OTHER OPERATING PLANS.
We anticipate that we will continue to incur operating losses, negative
cash flows from operations and capital expenditures through 2000 and 2001.
Accordingly, there can be no assurance that the length of time that proceeds
from recent financings will satisfy our cash requirements. Based upon our
current operating plan, we anticipate that our currently available funds will be
sufficient to satisfy our anticipated needs for working capital, capital
expenditures and business expansion through 2000. Our cash requirements,
however, depend upon many factors, including our net cash flows from operations,
the length of time it may take for us to develop a market for our products or
services, the market acceptance of our products and services and the response of
competitors who may develop competing products or services at lower costs. We
currently do not have any commitments for additional financing, and there can be
no assurance that we will be able to secure additional funding sources or that
financing will be made available on terms favorable to us. To the extent that
the proceeds from recent equity financings are insufficient to fund our
activities, we anticipate that it will be necessary to raise additional capital
through other means or to substantially reduce or eliminate current and planned
software development programs and other operating plans.
BECAUSE OUR PRODUCT IS SUPPOSED TO PROTECT PROPRIETARY DIGITAL CONTENT, OUR
BUSINESS COULD BE ESPECIALLY DAMAGED BY BREACHES IN OUR PATENTED SECURITY
METHODS.
A breach in our products' patented security methods and processes could
result in decreased demand for our technology by affiliates and content
providers or their customers. The secure and trusted management of proprietary
or confidential information over the internet is essential to establishing and
maintaining confidence. Without this confidence, potential or current affiliates
and content providers may not use our technology and their customers may not
trust and use our licensee's products. Therefore, security concerns and security
breaches could materially adversely affect our business and operating
<PAGE>
results. Advances in computer capabilities, new discoveries or other
developments could result in a compromise or breach of the security technology,
including cryptography technology, that we use to protect customer digital
content and transaction data. Security breaches could damage our reputation and
expose us to a risk of loss or litigation. Our insurance policies may not be
adequate to reimburse us for losses caused by security breaches. We cannot
guarantee that our security measures will prevent security breaches.
DEFECTS IN OUR TECHNOLOGY COULD HARM OUR OPERATING RESULTS AND RESULT IN
SUBSTANTIAL LIABILITY.
Defects or errors in current or future products could result in delayed
or failed deployment of our technology, lost revenues, or a delay in or failure
to achieve market acceptance, any of which could seriously harm our business and
operating results. Complex software products like our products often contain
errors or defects, including errors relating to security, particularly when
first introduced or when new versions or enhancements are released. Because this
is a system used for commerce, we believe that standards for reliability and
performance may be very high.
The development and use of our products and services expose us to
substantial risks of product liability claims because our products and services
are to be used in sensitive and valuable digital commerce transactions and
because we require our partners to comply with our specifications. Although our
agreements typically contain provisions designed to limit our exposure to
product liability claims, it is possible that these limitations of liability
provisions may not be effective as a result of existing or future laws or
unfavorable judicial decisions. A product liability claim brought against us,
even if not successful, would likely be time consuming and costly to defend and
could significantly harm our business and operating results.
IF STANDARDS FOR DIGITAL RIGHTS MANAGEMENT ARE NOT ADOPTED, OUR REVENUES MAY BE
MATERIALLY ADVERSELY AFFECTED.
If standards for digital rights management are not adopted or complied
with, content providers may delay distributing content until they are confident
that the technology by which the content is to be distributed will be
commercially accepted. Standards for the distribution of various digital content
might not develop or might be found to violate antitrust laws or fair use of
copyright policies. In addition, the failure to develop a standard among device
manufacturers may affect the market for digital goods and services. As a result,
customers may delay purchasing products or services that include our technology
if they are uncertain of commercial acceptance of the standards with which our
technology complies. Consequently, if a standard format for the secure delivery
of content on the Internet is not adopted, or if the standards are not
compatible with our digital rights management technology, our business and
operating results could suffer.
OUR SHARES OF COMMON STOCK ELIGIBLE FOR FUTURE SALE MAY RESULT IN A DECREASE IN
THE PRICE OF OUR COMMON STOCK.
Of the 13,071,736 shares of our common stock issued and outstanding
as of June 30, 2000, 9,932,835 shares are "restricted securities" as that
term is defined under Rule 144 promulgated under the Securities Act of 1933.
In addition, we have outstanding 53,435 shares of Series A Preferred Stock
which are convertible into 5,343,500 shares of common stock. The Series A
Preferred Stock will
<PAGE>
complete the one-year holding period of Rule 144 promulgated under the
Securities Act of 1933 in December 2000 through February 2001. We also have
outstanding 46,876 shares of Series B Preferred Stock and warrants which are
convertible into 5,312,600 shares of common stock and constitute a portion of
the shares covered by this registration statement. There are also additional
warrants convertible into common stock outstanding. We filed an application
to have our common stock listed for trading on the Nasdaq SmallCap Market on
April 6, 2000. The holders of the Series B Preferred Stock have agreed not to
sell any of these shares until the earlier of four months after the date the
registration statement, of which this prospectus is a part, becomes effective
or November 1, 2000.
Sales of substantial numbers of shares of common stock by
shareholders under Rule 144, through the registration statement, of which
this prospectus is a part, or otherwise could adversely affect the market
price of our securities and make it more difficult for us to sell equity
securities in the future at a time and price which we deem appropriate. We
cannot predict the effect that sales made in the future under Rule 144, the
registration statement, of which this prospectus is a part, or otherwise may
have on the prevailing market price of our common stock. Nonetheless, the
possibility exists that the sale of these shares may have a depressive effect
on the price of our common stock and may affect our ability to obtain
additional financing on favorable terms in the future, if at all.
LOW VOLUME TRADING AND VOLATILITY IN OUR STOCK PRICE MAY AFFECT YOUR ABILITY TO
SELL OUR COMMON STOCK.
Our common stock, listed for trading on the OTC bulletin board, has
traded in only small volumes and has been subject to volatility in price. While
we have applied for listing on the Nasdaq SmallCap Market, no assurance can be
given that the listing application will be accepted, that a more active market
will develop or that a shareholder will be able to liquidate his investment
without considerable delay, if at all. Even should a more active market develop,
the price may remain volatile. There can be no assurance that our trading price
will remain at any particular level, and if the trading price were to fall
sufficiently, many brokerage firms may not be willing to effect transactions in
our securities, particularly because low-priced securities are subject to an SEC
rule that imposes additional sales practice requirements on broker-dealers who
sell low-priced securities which are generally below $5 per share.
MANAGEMENT EXERCISES SIGNIFICANT CONTROL OVER US.
Our officers and directors own approximately 29% of our outstanding
common stock, including those shares of our preferred stock which are
convertible into common stock. As a result, if the officers and directors act
together, they will have significant influence on the outcome of all matters
requiring shareholder approval including the election and removal of
directors and any merger, consolidation or sale of all or substantially all
of our assets and significant influence on our management and affairs. That
influence could discourage others from initiating potential merger, takeover
or other change of control transactions. As a result, the market price of our
common stock could be materially adversely affected.
<PAGE>
FORWARD-LOOKING STATEMENTS
This prospectus contains or incorporates by reference forward-looking
statements. We have based these forward-looking statements on our current
expectations and projections about future events. These forward-looking
statements are subject to risks, uncertainties and assumptions about us,
including, among other things, those described in the "Risk Factors" section of
this prospectus. We caution you that forward-looking statements are necessarily
estimates that reflect the best current judgment of our senior management. These
forward-looking statements involve a number of risks and uncertainties that
could cause actual results to differ materially from those suggested by the
forward-looking statements. We recommend that you consider these forward-looking
statements in light of various important factors, including those set forth in
this prospectus, such as in the "Risk Factors" section and other factors set
forth from time to time in the information that we file with the SEC. To
identify forward-looking statements, you should look for words such as
"estimate," "project," "intend," "expect" or "believe." These forward-looking
statements are found at various places throughout this prospectus and the
documents incorporated by reference in this prospectus. You are cautioned not to
rely to a great extent on these forward-looking statements, which speak only as
of the date of such documents.
We do not undertake to update these forward-looking statements to
reflect actual results, changes and assumptions or other factors that could
affect these statements. In addition, we may from time to time make additional
or revised forward-looking statements about us or our business or about the
matters described or incorporated by reference in this document.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the common stock
offered by the selling shareholders.
SELLING SHAREHOLDERS
The following table lists the name, position, office or other material
relationship which the selling shareholder has had within the past 3 years with
us, if any, and the amount of securities of each class beneficially owned by
that shareholder before the offering.
The second column of the table includes shares issued or issuable upon
conversion of Series A and B Preferred Stock. The third column in the table
below includes common stock issuable upon exercise of two different warrants.
Those shares of common stock underlying the two different warrants are being
registered in the registration statement of which this prospectus is a part. The
first of the two different warrants becomes exercisable for one-half of the
shares of common stock shown in the third column of the following table if as of
August 15, 2000, the registration statement of which this prospectus is a part
has not been declared effective and the listing application for the related
common stock on the Nasdaq exchange has not been accepted. The second warrant
becomes exercisable for the second half of the shares shown in the third column
of the following chart if as of November 15, 2000, these two conditions are not
met. If the two conditions are met prior to August 15, 2000, then all of the
warrants will terminate and the shares will not be available for sale under this
prospectus and the related registration statement. If the two conditions are met
after August 15, 2000, but prior to November 15, 2000, then the second warrant
will terminate and only half of the shares purchasable under the warrants will
be available for sale under this prospectus and the related registration
statement. If the two
<PAGE>
conditions are met after November 15, 2000, all of the shares purchasable under
the warrants will be available for sale under this prospectus and registration
statement. The fourth column in the table below includes only shares of common
stock issued or issuable upon conversion of Series B Preferred Stock and
exercise of certain warrants. The sixth column in the table below does not
contain any numbers because the selling shareholders may offer all or some of
the common stock through the offering contemplated by this prospectus, no
estimate can be given as to the number of shares of common stock that will be
held by the selling shareholders after completion of this offering.
<TABLE>
<CAPTION>
Percentage of
Outstanding
Number of Shares of No. of Shares
Number of Shares of Shares Common Stock Beneficially
Common Stock Issuable Beneficially Owned
Name Beneficially Owned Under Shares Owned Prior to Following
---- Prior to Offering Warrants Offered Offering Offering
----------------- -------- ------- -------- --------
<S> <C> <C> <C> <C>
Raptor Global Portfolio, Ltd. 1,875,000 248,920 2,115,820 12.5%
Altar Rock Fund, L.P. 1,875,000 1,080 9,180 12.5%
Ronald A. Santella 62,500 8,333 70,833 *
Anthony Kamin 62,500 8,333 70,833 *
Ritchie Capital Management, LLC 1,750,000 33,333 283,333 9.9%
RC Capital, LLC 1,750,000 33,333 283,333 9.9%
RAM Trading, Ltd. 1,750,000 166,668 1,416,668 9.9%
SI Venture Fund II, L.P. 2,380,500 62,500 531,300 15.4%
Apex Investment Fund IV, L.P. 1,939,450 60,620 515,320 12.9%
Apex Strategic Partners IV, L.L.C. 1,939,450 1,880 15,980 12.9%
</TABLE>
* less than one percent of our outstanding shares of common stock.
Because the Company understands that Tudor Investment Corporation,
Raptor Global Portfolio, Ltd. and Altar Rock Fund, L.P. are affiliates of each
other under applicable securities laws, the percentage of outstanding shares of
common stock beneficially owned by these entities has been aggregated to reflect
the beneficial ownership of the affiliate entities.
Because Ritchie Capital Management, LLC, RC Capital, LLC and RAM
Trading, Ltd. have affirmed in their filing on Schedule 13G, dated March 15,
2000, that they are members of a group, the percentage of outstanding shares of
common stock beneficially owned has been aggregated to reflect the beneficial
ownership of the affiliate entities. According to letter agreements between the
foregoing entities and us, these entities have agreed that they cannot be the
"beneficial owner" of more than 9.9% of the Company's securities within the
meaning of Regulation 13D.
N. Adam Rin serves as one of our directors and is a managing member of
SI Venture Management II, L.L.C., the general partner of SI Venture Fund II,
L.P.
Because the Company understands that Apex Investment Fund IV, L.L.C.
and Apex Strategic Partners IV, L.P. are affiliates of each other under
applicable securities laws, the percentage of outstanding shares of common stock
beneficially owned by these entities has been aggregated to reflect the
beneficial ownership of the affiliate entities.
<PAGE>
PLAN OF DISTRIBUTION
The shares of common stock offered under this prospectus may be sold
from time to time by the selling shareholders or persons to whom the selling
shareholders have assigned or transferred their shares after the date of this
prospectus. We will bear all costs, expenses and fees incurred in connection
with the registration of the shares offered by this prospectus. The selling
shareholders will bear only brokerage commissions, selling commissions,
underwriting fees and stock transfer taxes applicable to the shares sold by such
selling shareholder and all fees and disbursements of counsel for the selling
shareholders in excess of $20,000 attributable to the sale of their shares.
Selling shareholders may sell shares from time to time in one or more
types of transactions, including block transactions, in the over-the-counter
market, in negotiated transactions, through put or call options on the shares
and through short sales of shares. Shares may be sold at market prices
prevailing at the time of sale or at negotiated prices. Selling shareholders may
sell shares directly to purchasers or to or through broker-dealers as principals
or agents. These broker-dealers may be compensated through discounts,
concessions or commissions from the selling shareholders or the purchasers of
the shares.
Selling shareholders also may resell all or a portion of the shares in
open market transactions in reliance upon Rule 144 under the Securities Act of
1933 rather than under this prospectus, provided they meet the criteria and
conform to the requirements of Rule 144. In general, under Rule 144, restricted
securities may be sold after a one-year holding period in ordinary market
transactions through a broker or with a market maker subject to a volume
limitation. The volume limitation restricts the number of shares that may be
sold within any three-month period to the greater of (1) 1% of the outstanding
shares or (2) the average of the weekly trading volume during the four calendar
weeks prior to the sale. Sales under Rule 144 require the filing of a Form 144
with the SEC. However, if the shares have been held for more than two years by a
person who is not an affiliate, there is no limitation on the manner of sale or
the volume of shares that may be sold and no filing with the SEC is required.
The selling shareholders have advised us that they have not entered
into any agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of their shares, nor is there an underwriter
or coordinating broker acting in connection with the proposed sale of shares by
the selling shareholders.
In connection with the issuance and sale of the shares of Series B
Preferred Stock that are convertible into the shares offered under this
prospectus, the selling shareholders agreed not to sell any of the shares
until the earlier of four months after the registration statement is declared
effective or November 1, 2000. Each selling shareholder also agreed if it has
not sold all the shares offered under this prospectus at the time of any
underwritten public offering of our securities and if it chooses not to sell
all of its shares in that underwritten public offering, it would enter into
an agreement providing that selling shareholder will not transfer or dispose
of its shares for a period specified by the underwriter, but not in excess of
180 days, provided that other shareholders with registration rights and all
of our officers and directors enter into similar agreements.
The selling shareholders and any broker-dealers that act in connection
with the sale of shares might be deemed to be "underwriters" within the meaning
of Section 2(11) of the Securities Act of 1933. We have agreed to indemnify each
selling shareholder against particular liabilities, including liabilities
arising under the Securities Act of 1933 and the selling shareholders have
agreed to indemnify us against certain liabilities, including liabilities
arising under the Securities Act of 1933.
<PAGE>
Because selling shareholders may be deemed to be "underwriters" within
the meaning of Section 2(11) of the Securities Act of 1933, the selling
shareholders will be subject to the prospectus delivery requirements of the
Securities Act of 1933. We have informed the selling shareholders that Rule
10b-5 and the anti-manipulative provisions of Regulation M promulgated under the
Exchange Act may apply to their sales in the market.
DESCRIPTION OF SECURITIES TO BE REGISTERED.
Our authorized capital stock consists of 50,000,000 shares of common
stock, par value $.01 per share, and 5,000,000 shares of preferred stock, par
value $.01 per share. The selling shareholders may offer up to 5,312,600 shares
of common stock issuable upon conversion of the Series B Preferred Stock and
exercise of certain warrants under this prospectus.
As of June 30, 2000, there were 13,071,736 shares of common stock
outstanding and held of record by shareholders.
VOTING RIGHTS. Holders of common stock are entitled to one vote for
each share held on all matters submitted to a vote of shareholders and do not
have cumulative voting rights. Holders of preferred stock are entitled to the
number of votes equal to the number of shares of common stock into which their
preferred stock may be converted.
DIVIDEND RIGHTS AND POLICY. Holders of common stock are entitled to
receive dividends declared by our board of directors out of funds legally
available, subject to any preferential dividend rights of any outstanding
preferred stock. We have not paid any cash dividends on our common stock to date
and do not anticipate payment of cash dividends in the future. We are required
to obtain the approval of the holders of the Series A and Series B Preferred
Stock before declaring any dividends on the common stock as long as certain
amounts of the Series A Preferred Stock and Series B Preferred Stock remain
outstanding.
LIQUIDATION RIGHTS. Upon the liquidation, dissolution or winding up of
our business, the holders of common stock are entitled to receive our net assets
available after the payment of all debts and other liabilities, subject to the
prior rights of any outstanding preferred stock.
OTHER RIGHTS; EFFECT OF PREFERRED STOCK ISSUANCES. Holders of the
common stock have no preemptive, subscription, redemption or conversion rights.
The outstanding shares of common stock are, when issued in consideration for
payment of those shares, fully paid and nonassessable. The rights, preferences
and privileges of holders of common stock are subject to the rights of the
holders of shares of any series of preferred stock which we may designate and
issue in the future.
Our board of directors is authorized, without further shareholder
approval, to issue from time to time up to an aggregate of 5,000,000 shares of
preferred stock in one or more series and to fix or alter the designation,
powers, preferences and rights of each such series and the qualifications,
limitations or restrictions of such series, including the dividend rights,
dividend rates, conversion rights, voting rights, rights and terms of
redemption, including sinking fund provisions, redemption price or prices, and
liquidation preferences of any wholly unissued series of preferred stock and to
establish from time to time the number of shares constituting any series or
designations of series and to increase and decrease the number of shares of any
series subsequent to the issuance of shares of that series, but not below the
number of shares of such series then outstanding.
<PAGE>
The ability of the board of directors to establish the rights of and to
issue substantial amounts of preferred stock without the need for shareholder
approval, while providing desirable flexibility in connection with raising
capital, possible acquisitions or other corporate purposes, may have the effect
of discouraging, delaying or preventing a change in control.
We have issued 53,451 shares of Series A Preferred Stock to a group of
five investors and have issued 46,875 shares of Series B Preferred Stock to a
group of ten investors. The shares of common stock offered under this prospectus
will result from the conversion of the Series B Preferred stock and from the
exercise of certain warrants described in this prospectus.
ANTI-TAKEOVER EFFECTS OF VARIOUS PROVISIONS OF DELAWARE LAW AND OUR CERTIFICATE
OF INCORPORATION AND BYLAWS.
We are subject to the provisions of Section 203 of the Delaware General
Corporation Law. Subject to some exceptions, Section 203 prohibits a publicly
held Delaware corporation from engaging in a "business combination" with an
"interested shareholder" for a period of three years after the date of the
transaction in which the person became an interested shareholder, unless the
interested shareholder attained that status with the approval of the board of
directors or unless the business combination is approved in a prescribed manner.
A "business combination" includes mergers, asset sales and other transactions
resulting in a financial benefit to the interested shareholder. Subject to
various exceptions, an "interested shareholder" is a person who, together with
affiliates and associates, owns, or within three years did own, 15% or more of
the corporation's voting stock. This statute could prohibit or delay the
accomplishment of mergers or other takeovers or change in control attempts with
respect to us and, accordingly, may discourage attempts to acquire us.
In addition, various provisions of our amended and restated
certificate of incorporation, as amended, referred to as our "certificate of
incorporation," and bylaws, which provisions are summarized in the following
paragraphs, may be deemed to have an anti-takeover effect and may delay,
defer or prevent a tender offer or takeover attempt that a shareholder might
consider in its best interest, including those attempts that might result in
a premium over the market price for the shares held by shareholders.
CLASSIFICATION OF THE BOARD OF DIRECTORS; REMOVAL OF DIRECTORS.
Our certificate of incorporation provides that our directors are divided into
three classes serving three year terms. Our certificate of incorporation also
provides that any director or the entire board of directors may be removed
only for cause and by the affirmative vote of the holders of at least 66 2/3%
of the voting power of all then outstanding shares of the voting stock. These
provisions may deter a shareholder from removing incumbent directors and
simultaneously gaining control of the board of directors by filling the
vacancies created by this removal with its own nominees.
SHAREHOLDER ACTION; SPECIAL MEETING OF SHAREHOLDERS. Our certificate of
incorporation provides that shareholders may not take action by written consent.
The bylaws further provide that special meetings of shareholders may be called
by:
- shareholders entitled to cast 25% of all votes
entitled to be cast at the meeting who have requested
the meeting in writing and have delivered the request
to us; or
- the Series A Preferred shareholders who own fifteen
percent (15%) of all outstanding voting shares or
- the Series B Preferred shareholders who own fifteen
percent (15%) of all outstanding voting shares.
The request must include various additional information about the requesting
shareholders and the
<PAGE>
matters to be considered at the meeting. The requesting shareholders are also
required to pay us reasonable estimated costs of preparing and mailing the
notice of meeting. Furthermore, no special meeting may be called to consider
any matter which is substantially the same as a matter voted on at any
special meeting of shareholders held during the prior twelve months unless
the meeting is requested by shareholders entitled to cast a majority of all
votes entitled to be cast at the meeting.
ADVANCE NOTICE REQUIREMENTS FOR SHAREHOLDER PROPOSALS FOR ANNUAL
MEETINGS AND DIRECTOR NOMINATIONS. Our bylaws provide that shareholders seeking
to bring business before an annual meeting of shareholders or to nominate
candidates for election as directors must provide timely notice of such business
or nomination in writing and must be a shareholder of record of a class of
securities entitled to vote on the business the shareholder is proposing both at
the time of giving the notice and on the record date for the annual meeting. A
shareholder's notice must be given by certified U.S. mail postage prepaid and
return receipt requested and addressed to our secretary at our principal
executive offices. To be timely in the case of a shareholder proposal, the
notice must be received not less than 120 days prior to the anniversary of the
date of our notice of annual meeting for the previous year's annual shareholders
meeting, unless the date of the annual shareholders meeting has been changed to
be more than 30 calendar days from the date of the prior year's meeting, in
which case such notice by the shareholder must be received 60 days prior to the
annual meeting of shareholders. To be timely in the case of a director
nomination, the shareholder's notice must be received not less than 120 days
prior to the anniversary of the date of our notice of annual meeting for the
previous year's annual meeting of shareholders:
- on or after April 1st and before May 1st of the year
in which the meeting will be held if the meeting is
to be an annual meeting and the following bullet
point is not applicable; or
- not less than 60 days before an annual meeting, if
the date of the annual meeting has been changed by
more than 30 days; or
- not later than the close of business on the tenth day
following the day on which notice of a special
meeting of shareholders called for that purpose of
electing directors is first given to shareholders.
The bylaws also specify certain requirements as to
the form and content of the shareholder's notice.
These provisions may preclude shareholders from
bringing matters before an annual meeting of
shareholders or from making nominations for
directors.
AUTHORIZED BUT UNISSUED SHARES. Our authorized but unissued shares of
common stock and preferred stock are available for future issuance without
shareholder approval, subject to various limitations as may be imposed by the
securities exchange or quotation system on which the shares are listed. These
additional shares may be utilized for a variety of corporate purposes, including
future offerings to raise additional capital, corporate acquisitions and
employee benefit plans. The existence of authorized but unissued and unreserved
common stock and preferred stock could make more difficult or discourage an
attempt to obtain control of us by means of a proxy contest, tender offer,
merger or otherwise.
SUPERMAJORITY VOTE ON CERTAIN MATTERS. The Delaware General Corporation
Law provides generally that the affirmative vote of a majority of the shares
entitled to vote on any matter is required to amend a corporation's certificate
of incorporation or bylaws, unless a corporation's certificate of incorporation
or bylaws, as the case may be, requires a greater percentage. Our certificate of
incorporation requires the affirmative vote of the holders of at least 66 2/3%
of the voting power of all the then outstanding shares of voting stock, voting
as a single class, to alter or amend Article 5, on the board of directors,
Article 6, establishing such supermajority requirement, Article 8, reserving to
us the right to amend or repeal the certificate of incorporation or Article 9,
limiting liability and providing for indemnification of directors, officers and
employees of our certificate of incorporation.
<PAGE>
TRANSFER AGENT AND REGISTRAR. Our transfer agent and registrar for the
common stock is Corporate Stock Transfer, Inc.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and information that we file later
with the SEC will automatically update and supersede this information. The
following documents that we filed with the SEC in accordance with the Securities
Exchange Act of 1934 are incorporated into this prospectus by reference and are
delivered, without charge, with this prospectus:
1. Annual Report on Form 10KSB/A (Amendment No. 2) for the
fiscal year ended December 31, 1999
2. Annual Report on Form 10-KSB/A for the fiscal year ended
December 31, 1999;
3. Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1999, except for Item 7 of that report and the
consolidated financial statements, which have been amended to
include the conformed signature of the independent
accountants;
4. Quarterly Report on Form 10-QSB for the three months ended
March 31, 2000;
5. Current report on Form 8-K dated May 12, 2000 (filed May 19,
2000); and
6. Notice of Annual Meeting of Shareholders and Definitive Proxy
Statement filed on May 25, 2000.
We also incorporate by reference in this prospectus additional
documents that we may file with the Securities and Exchange Commission under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after
the date of this prospectus. These include periodic reports, such as annual
reports on Form 10-KSB, quarterly reports on Form 10-QSB and current reports on
Form 8-K.
You may obtain the documents incorporated by reference as described
below. You may also request a copy of these filings, at no cost, from us by
writing or telephoning us at:
SOFTLOCK.COM, INC.
CORPORATE SECRETARY
FIVE CLOCK TOWER PLACE, SUITE 440
MAYNARD, MASSACHUSETTS 01754
(978) 461-5940
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C.
20549 and its public reference rooms in New York, New York and Chicago,
Illinois. Please call the SEC at 1-800-SEC-0330 for further information on the
public reference rooms. Our SEC filings are also available to the public from
the SEC's website at "http://www.sec.gov."
This prospectus is part of a registration statement we filed with the
SEC. You should rely only on the information or representations provided or
incorporated by reference in this prospectus. We have authorized no one to
provide information other than that provided or incorporated by reference in
this prospectus. We have authorized no one to provide you with different
information. We are not making an offer of shares in any state where the offer
is not permitted. You should not assume that the information
<PAGE>
in this prospectus or any document incorporated by reference into this
prospectus is accurate as of any date other than the date on the front of the
document.
INDEMNIFICATION
Insofar as indemnification arising under Securities Act of 1933 may be
permitted to directors, officers or persons controlling the registrant under to
the foregoing provisions, the registrant has been informed that in the opinion
of the SEC, such indemnification is against public policy as expressed in that
Act and is therefore unenforceable.
VALIDITY OF SECURITIES OFFERED
The validity of the common stock offered under this prospectus will
be passed upon for us by McGuire, Woods, Battle & Boothe LLP, Tysons Corner,
Virginia. McGuire, Woods, Battle & Boothe LLP owns 3,520 shares of the common
stock. No additional shares of common stock will be issued to McGuire, Woods,
Battle & Boothe LLP in connection with this offering.
EXPERTS
The consolidated financial statements incorporated in the prospectus
by reference, from the Company's Annual Report on Form 10-KSB/A for the year
ended December 31, 1999 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report (which report expressed an
unqualified opinion and includes an explanatory paragraph referring to the
restatement of our 1998 financial statements) which is incorporated herein by
reference, and has been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
<PAGE>
<TABLE>
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN
THIS DOCUMENT OR OTHER INFORMATION TO WHICH THIS 5,312,240 SHARES
DOCUMENT REFERS. WE HAVE NOT AUTHORIZED ANYONE TO
PROVIDE YOU WITH INFORMATION THAT IS DIFFERENT. SOFTLOCK.COM, INC.
--------------
COMMON STOCK
TABLE OF CONTENTS
--------------------
PROSPECTUS
PAGE
<S> <C>
Summary..........................................i --------------------
Risk Factors.....................................1
Forward-Looking Statements......................10
Use of Proceeds.................................10
Selling Shareholders............................10
Plan of Distribution............................12
Description of Securities to be Registered......12
Incorporation of Certain Information by
Reference.....................................15
Indemnification.................................16
Validity of Securities Offered..................16
Experts 16
</TABLE>
DEALER PROSPECTUS DELIVERY OBLIGATION
Until, _________, all dealers that effect transactions in these
securities, whether or not participating in this offering, may be required to
deliver a prospectus. This is in addition to the dealer's obligation to deliver
a prospectus when acting as underwriters and with respect to their unsold
allotments or subscriptions.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
OTHER EXPENSES
OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following expenses will be paid by us in connection with the
distribution of the shares of common stock registered by this registration. We
are paying all of the selling shareholders' expenses related to this offering,
except the selling shareholders will pay any applicable broker's commissions and
expenses, transfer taxes, as well as fees and disbursements of counsel and
experts for the selling shareholders in excess of $20,000. All of our expenses,
except for the SEC Registration Fee, are estimated:
<TABLE>
<S> <C>
SEC filing fees $ 12,610
Legal fees and expenses $ 50,000
Accounting fees and expenses $ 15,000
Printing and engraving $ 5,000
Blue sky fees and expenses $ 5,000
Transfer agent and registrar fees $ 5,000
Miscellaneous expenses $ 2,000
Total expenses $ 94,610
</TABLE>
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL")
permits a corporation, through its certificate of incorporation, to eliminate
the personal liability of its directors to the corporation or its shareholders
for monetary damages for breach of fiduciary duty as a director, with certain
exceptions. The exceptions include breach of fiduciary duty of loyalty, acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, improper declarations of dividends and transactions from which
the directors derived an improper personal benefit. Section 145 of the DGCL
further establishes a corporation's power to indemnify its directors, officers,
employees or agents.
The Company's amended and restated certificate of incorporation, as
amended, referred to as our "certificate of incorporation," provides that to the
extent permitted by law, the Company shall fully indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a director or
officer of the Company, or is or was serving at the request of the Company as a
director or officer of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses, including
attorneys' fees, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding.
The certificate of incorporation further provides that Company shall
advance expenses, including attorneys' fees, incurred by a director or officer
in advance of the final disposition of such action, suit or proceeding upon the
receipt of an undertaking by or on behalf of the director or officer to repay
such amount if it shall ultimately be determined that such director or officer
is not entitled to indemnification.
II
<PAGE>
Our bylaws further discuss the right to indemnification and provide
each person who was or is a party or is threatened to be made a party to or is
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative and whether by or in
the right of the Company or otherwise (a "proceeding"), by reason of the fact
that he or she, or a person of whom he or she is the legal representative, is or
was a director or officer of the Company or is or was serving at the request of
the Company as a director, officer, employee, partner, whether limited or
general, or agent of another corporation or of a partnership, joint venture,
limited liability company, trust or other enterprise, including service with
respect to an employee benefit plan, shall be, and shall be deemed to have a
contractual right to be, indemnified and held harmless by the Company and any
successor to the Company by merger or otherwise to the fullest extent authorized
by, and subject to the conditions and, except as otherwise provided by the
prospectus, procedures set forth in DGCL, as such law may later be amended, but
any such amendment shall not be deemed to limit or prohibit indemnification
rights if such rights would have been permitted by law for acts or omissions
occurring prior to such amendment, against all expenses, liabilities and losses,
including attorneys' fees, judgments, fines, ERISA taxes or penalties and
amounts paid or to be paid in settlement, reasonably incurred by such person in
connection with the proceeding; provided, however, the Company shall indemnify
any such person seeking indemnification in connection with a proceeding
initiated by such persons only if such proceeding was authorized by the board of
directors. Persons who are not directors or officers of the Corporation and are
not so serving at the request of the Corporation may be similarly indemnified in
respect of such service to the extent authorized at any time by the board of
directors. These indemnification rights include the right to be paid in advance
for expenses upon receipt of an undertaking to repay all advanced amounts if it
is later determined that such person was not entitled to indemnification and
such an undertaking is required by the DGCL. The bylaws state that the expenses
incurred by other employees and agents may be paid in advance upon such terms
and conditions deemed appropriate by the board of directors.
These rights to indemnification and advance payment of expenses are not
exclusive of any other rights to indemnification and shall continue as to a
person who has ceased to be a director, officer, employee, partner or agent.
The bylaws give the Company the power to purchase and maintain
insurance on behalf of such persons whether or not the DGCL would give the
Company the power to indemnify such persons.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to our directors, officers and controlling persons
under the foregoing provisions, or otherwise, we have been advised that in the
opinion of the SEC, such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable.
EXHIBITS.
The following exhibits listed on the Exhibit Index on page [II-7] of
this Registration Statement have been previously filed, are filed with this
prospectus, will be filed by amendment, or are incorporated in this prospectus
by reference to other filings:
Exhibit
Number Description
------ -----------
3.1 Amended and Restated Certificate of Incorporation,
filed with the State of
II
<PAGE>
Delaware on August 3, 1998 (incorporated by reference
to Exhibit 3.1 to the Company's Current Report on
Form 8-K, dated July 28, 1998.)
3.2 Amended and Restated Bylaws (incorporated by
reference to Exhibit 5 of the Company's Registration
Statement on Form 8-A filed March 15, 2000.)
3.3 Certificate of Designation of Powers, Preferences and
Rights of the Series A Preferred Stock (incorporated
by reference to Exhibit 99.4 of the Company's Current
Report on Form 8-K dated as of December 30, 1999).
3.4 Amendment No. 1 to Certificate of Designation for
Series A Preferred Stock filed with the Delaware
Secretary of State as of January 13, 2000
(incorporated by reference to Exhibit 99.2 of the
Company's Current Report on Form 8-K dated as of
February 10, 2000).
3.5 The Company's Certificate of Correction to
Certificate of Designation of Powers, Preferences and
Rights of the Series B Preferred Stock, (incorporated
by reference to Exhibit 99.5 of the Company's Current
Report on Form 8-K dated as of February 10, 2000).
5.1* Opinion of McGuire, Woods, Battle & Boothe LLP.
10.1 Amended and Restated Shareholders' and Rights
Agreement (incorporated by reference to Exhibit 99.3
of the Company's Current Report on Form 8-K dated as
of February 10, 2000).
10.2 Series B Preferred Stock and Warrant Purchase
Agreement by and among the purchasers listed on the
Schedule of Purchasers, SoftLock, Inc. and SoftLock
Services, Inc. (incorporated by reference to Exhibit
99.4 of the Company's Current Report on Form 8-K
dated as of February 10, 2000).
10.3 Form of Warrant exercisable under certain conditions
on August 15, 2000 (incorporated by reference to
Exhibit 99.7 of the Company's Current Report on Form
8-K dated as of February 10, 2000).
10.4 Form of Warrant exercisable under certain conditions
on November 15, 2000 (incorporated by reference to
Exhibit 99.8 of the Company's Current Report on Form
8-K dated February 10, 2000).
23.1* Consent of Independent Auditors
23.2 Consent of McGuire, Woods, Battle & Boothe LLP
(included in opinion filed as Exhibit 5.1)
24 Power of Attorney (included in signature page to this
registration statement)
* Included with this Registration Statement
II
<PAGE>
UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration
Statement, or the most recent post-effective amendment of the
Registration Statement, which, individually or in the
aggregate, represent a fundamental change in the information
set forth in the Registration Statement. However, any increase
or decrease in volume of securities offered, if the total
dollar value of securities offered would not exceed that which
was registered, and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the
form of prospectus filed with the SEC in accordance to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the Registration Statement or any material change to such
information in the Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
SEC by the Registrant under to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered in
such post-effective amendment, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering of such securities.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report under to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered in such Registration Statement, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering of such securities.
(c) The undersigned Registrant undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the last annual report to security holders that is incorporated by
reference in the prospectus and furnished under and meeting the requirements of
Rules
II
<PAGE>
14a-3 or 14c-3 under the Securities Exchange Act of 1934 and where interim
financial information required to be presented by Article 3 of Regulation S-K is
not set forth in the prospectus, to deliver or cause to be delivered to each
person to whom the prospectus is sent or given the latest quarterly report that
is specifically incorporated by reference in the prospectus to provide such
interim financial information.
(d) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant according to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities, other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding, is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-2 and has duly caused this registration
statement or amendment to the registration statement to be signed on its behalf
by the undersigned, duly authorized, in the Town of Maynard, State of
Massachusetts, on this 6th day of July, 2000.
SOFTLOCK.COM, INC.
By /s/ Scott W. Griffith
-------------------------------
Scott W. Griffith,
President and Chief Executive Officer
In accordance with the requirements of the Securities Act of 1933,
this Registration Statement or amendment to the registration statement has
been signed by the following persons in the capacities and on the date
indicated. Michael J. Dziczkowski, whose signature appears below, hereby
appoints either of Douglas R. Johnson and Scott W. Griffith and each of them
singly, his true and lawful attorney, with full powers to them and each of
them to sign for him in his name and capacity indicated below, any and all
amendments to this registration statement, hereby ratifying and confirming
his signature as it may be signed by said attornies to any and all amendments.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Scott W. Griffith Chairman of the Board, President July 6, 2000
-------------------------------------------- and Chief Executive Officer
Scott W. Griffith
* Executive Vice President July 6, 2000
-------------------------------------------- and Chief Financial Officer
Douglas R. Johnson
* Director July 6, 2000
--------------------------------------------
Francis J. Knott
* Director July 6, 2000
--------------------------------------------
Geoffrey de Lesseps
* Director July 6, 2000
--------------------------------------------
Richard N. Gold
II
<PAGE>
* Director July 6, 2000
--------------------------------------------
Jonathan Schull
* Director July 6, 2000
--------------------------------------------
Leigh Michl
* Director July 6, 2000
--------------------------------------------
N. Adam Rin
* By:
Scott W. Griffith, Attorney in Fact
--------------------------------------------
/s/ Michael J. Dziczkowski Corporate Controller July 6, 2000
-------------------------------------------- (Principal Accounting Officer)
Michael J. Dziczkowski
</TABLE>
II
<PAGE>
EXHIBITS INDEX
Exhibit
Number Description
------ -----------
3.1 Amended and Restated Certificate of Incorporation,
filed with the State of Delaware on August 3, 1998
(incorporated by reference to Exhibit 3.1 to the
Company's Current Report on Form 8-K, dated July 28,
1998.)
3.2 Amended and Restated Bylaws (incorporated by
reference to Exhibit 5 of the Company's Registration
Statement on Form 8-A filed March 15, 2000.)
3.3 Certificate of Designation of Powers, Preferences and
Rights of the Series A Preferred Stock (incorporated
by reference to Exhibit 99.4 of the Company's Current
Report on Form 8-K dated as of December 30, 1999).
3.4 Amendment No. 1 to Certificate of Designation for
Series A Preferred Stock filed with the Delaware
Secretary of State as of January 13, 2000
(incorporated by reference to Exhibit 99.2 of the
Company's Current Report on Form 8-K dated as of
February 10, 2000).
3.5 The Company's Certificate of Correction to
Certificate of Designation of Powers, Preferences
and Rights of the Series B Preferred Stock,
(incorporated by reference to Exhibit 99.5 of the
Company's Current Report on Form 8-K dated as of
February 10, 2000).
5.1* Opinion of McGuire, Woods, Battle & Boothe LLP.
10.1 Amended and Restated Stockholders' and Rights
Agreement (incorporated by reference to Exhibit 99.3
of the Company's Current Report on Form 8-K dated as
of February 10, 2000).
10.2 Series B Preferred Stock and Warrant Purchase
Agreement by and among the purchasers listed on the
Schedule of Purchasers, SoftLock, Inc. and SoftLock
Services, Inc. (incorporated by reference to Exhibit
99.4 of the Company's Current Report on Form 8-K
dated as of February 10, 2000).
10.3 Form of Warrant exercisable under certain conditions
on August 15, 2000 (incorporated by reference to
Exhibit 99.7 of the Company's Current Report on Form
8-K dated as of February 10, 2000).
10.4 Form of Warrant exercisable under certain
conditions on November 15, 2000 (incorporated by
reference to Exhibit 99.8 of the Company's Current
Report on Form 8-K dated February 10, 2000).
16 Letter on Change in Certifying Accountant
(incorporated by reference to Exhibit 16 of the
Company's Current Report on Form 8-K dated as of
January 7, 2000).
<PAGE>
23.1* Consent of Independent Auditors.
23.2 Consent of McGuire, Woods, Battle & Boothe LLP
(included in opinion filed as Exhibit 5.1).
24 Power of Attorney (included in signature page to this
registration statement).
* Included with this Registration Statement
